The double-edged sword of enforcement

At the same time that the OSS community is understandably celebrating the resolution of the Jacobsen case and pouring over the associated settlement documents, many of the same people have been “wringing their hands” about the recently announced patent cross-license agreement between Microsoft and Amazon.  Since the Microsoft Amazon agreement appears to cover, among other things, the use of open source software in the Kindle e-reader, the announcement has sparked a major debate (well summarized in today’s IT Blogwatch) as to whether it is an significant endorsement of Microsoft’s assertion that Linux and other OSS technologies infringe more than 200 of its patents.

While I do not wish to enter into this debate, I do find it curious that many individuals are simultaneously celebrating the triumph of the copyright regime in the Jacobsen case and rueing the “apparently” successful assertion of patents against Linux.  Since the OSS movement is, at its core, a creative licensing initiative with intellectual property as its very foundation, it is time for the community to adopt a more consistent approach.  While I am well aware of the many challenges that software patents bring to the OSS movement, it is time for the OSS community to come together to unleash its awesome creativity to address and overcome these challenges in a constructive and healthy manner that respects the double-edged sword of enforcement.